Ms. McGovern's business card said she was a "Human Rights Officer." What a perfectly Orwellian title.

Early in her interrogation, she said "I always ask people... what was your intent and purpose of your article?"

It wasn't even a question about what we had published in the magazine. It was a question about my private thoughts. I asked her why my private feelings were of interest to the government. She said, very calmly, that they would be a factor taken into account by the government in determining whether or not I was guilty.

While much of the progressive Canadian blogosphere chants, "It's not a criminal proceeding... it's just an investigation... it's not a criminal proceeding... it's just an investigation...." I will also repeat myself. I don't care. This shouldn't have been investigated.

If a person files a so-called human-rights complaint about something published or spoken which she or he finds offensive, there should be no investigation. They should be told, sorry, your human rights could not have been violated by something that appeared in a magazine. Because, in my opinion, there should be no law restraining anyone from speaking or publishing whatever they choose. The government should have no business investigating what any Canadian is thinking, saying or writing.

I doubt I agree with Ezra Levant on any other issue. But on this one, I do.

And you know what? I'm sick of being told I'm uninformed or not really Canadian or that I've been brainwashed or suckered in or that I'm importing dangerous beliefs from the US. There is no one "Canadian" way of thinking, nor should there be.

I stand up for Mr. Levant's right to publish whatever he chooses, without government interference, because I want that right, and I want every human to have that right.

That anyone could consider themselves a progressive and not stand for free speech and freedom of expression is, to me, very sad. And dangerous. Laws repressing free speech are used against dissenters, pacifists, freedom fighters and revolutionaries the world over.

44 comments:

I've been on here lately expressing my ambivalence and reluctant acceptance of speech-limiting legislation in Canada. But I have to admit I've been finding my acceptance eroding. Part of it is L-Girl's principled stand and the reasons for it, which are hard to take on directly. Part of it is seeing some of my own attitudes stripped to the ugly bones in things Partisan has had to say... things that stop just a little short of suggesting they wouldn't be investigating Ezra Levant if he weren't guilty of something, as the saying goes.

Ezra Levant is being called to accounts and being put out of pocket because he republished political cartoons that are already part of the public discourse. What I see in this is not the defense of our society but attempts by interested parties to use the machinery of the state to inflict censorship on Levant and others – ironic indeed, given how concerned Partisan has been to remove bias from the process. The entire matter was initiated on the basis of bias.

I can't see this as a reasonable limit on free speech in a democratic society, as per the Charter. I don't think matters of this kind should be subject to any official review whatsoever. This process is dangerously flawed and needs to be revised.

I have also found myself gently chastised on a matter I hadn't even recognized... that some ways of thinking are "more Canadian" than others. I often find myself feeling this way. But L-Girl is right when she reminds us this isn't the case. Canada may have official policies on this and on that, but there is not official line of thought. It's right to remind people of that.

Perhaps a good example of the true justification of protecting free speech: don't we always learn more by hearing what each other has to say, even if we find something distasteful, offensive or wrong? We get to challenge those views and sometimes we get to test and rethink our own views.

Though Partison was tiresome and pedantic and at times entirely obnoxious and abusive, I still would rather hear (read, I guess) what someone has to say so that, as in that case, I can feel even more certain about my own views. More importantly, in many cases I have learned that my views are wrong, and I have always been grateful for that opportunity to listen and rethink what I thought I knew.

I tried to read the article, really I did, but I'm stuck on just the bit you quoted.

If something you did offended people, and your intention was anything other than (or in addition to) offending people, why wouldn't you want people to take your intentions into consideration? Why would you be so nearly outraged that they were taking your intentions into consideration?

And at that point my brain just says "Does not compute" and gives me a BSOD and I have to go to Daily Puppy to reboot.

While I agree with what's being said here, and I appreciate seeing it in a non-lecture format for a change, I'm wondering about the difference between the Levant free speech case, and the libel case he is currently prosecuting against a former employee and the small newspaper she now works for. (Has that been linked in these discussions? If not I'll gladly dig it up.)

I'm not asking this just to cast dispersions on Levant; that's just a nice side-benefit. I'm really wondering whether free speech absolutism tends to extend as far as protecting libel and slander, or whether they are under the fire-in-a-crowded-theatre umbrella.

Btw, thanks to LP for your first comment here. You and Laura have been articulating a lot of things that I have not been able to myself, lately.

To address M@'s the question about libel and slander: they are a limit on free speech, just as copyright law is---you will be liable if you copy someone else's copyrighted words without permission. You will be liable if you spread false statements that damage someone else.

The First Amendment is NOT absolute; it is primarily intended to protect individuals from government censorship. Libel laws weigh that interest against the countervailing concern with protecting people from the false statements. Before a plaintiff can recover in a libel case, they have to prove in court that the statements made were false and damaging. It is not enough that the statements are offensive or hurt one's feelings.

But the First Amendment would not allow the government to prohibit the press from reporting on a public hearing or from publishing an offensive cartoon. Of course, with the current Supreme Court, the First Amendment is in danger of being eroded in the name of national security. That is one of my biggest nightmares about the state of the US right now.

(I hope this post isn't too long...I am not trying to lecture, just trying to answer M@'s question as best I can.)

Amy -- of course you don't sound like you're lecturing. If you want to hear lecturing, check out the Departisan's blogs at... oh, wait.

Anyhow, to the point. If someone prosecuted a libel case against you -- even a frivolous one -- you would be forced to defend yourself in court.

If you have means, then the defense isn't a big deal, as you can probably recover your court costs when the trial is thrown out. But if you're, say, a poor publisher who can't afford representation, that's a big risk, and the one who spends less on legal representation is the one who usually loses (not a constitutional issue, but one worth bearing in mind here).

So a poor person would sooner accept the curtailment of their rights than the potential burden of a court defense and, if worst comes to worst, loss.

In the Levant case, he was not compelled to appear in court (though it is prudent, even if expensive, for him to do so). And because it is not a civil suit, I'm assuming (but not certain) that a public defender would be available to him.

So doesn't the Levant case seem to be a lesser burden than, say, the libel suit he is prosecuting against someone else?

One other thing -- we can only judge a court on the cases they convict, not the ones that are brought forward to them. A human rights tribunal would not, I am confident in saying, convict because someone was offended by someone else's statement; they would only convict on a clear incitement to violence against an identifiable minority. I'm not defending the hate speech laws; I've always been against them. But let's not muddy the waters any more than we have to.

On that note, I'll also say that I would rather see libel laws struck from the books than the hate speech laws kept.

M@, I just am not at all familiar with the Canadian courts and commissions or the laws involved in the Levant case to make any sensible comparison to the costs of litigating in the US. It is always true that those with money have some advantage both in bringing and defending against lawsuits. In the US, someone like Levant would not have a public defender unless he was indigent and subject to criminal prosecution. In a civil suit, if he were poor, he might be able to get a legal services office to represent him though I am not sure these types of cases would be within the scope of what legal services offices do.

I don't know what you mean when you say the Levant case would be a lesser burden than the libel case he is bringing ---on whom or what? Levant? Society? The right of free expression? Maybe it is just that I am tired, but I was not sure I understood what you were saying there.

I share your skepticism with respect to libel laws. FWIW, it is very hard to win a libel case, especially as a public figure, and given what our press prints these days, especially the tabloids, I don't think libel laws are chilling much speech.

If something you did offended people, and your intention was anything other than (or in addition to) offending people, why wouldn't you want people to take your intentions into consideration? Why would you be so nearly outraged that they were taking your intentions into consideration?

To me it's obvious.

If I've broken the law, then I've broken the law, and I should be punished. If I haven't broken the law, then I shouldn't be punished. If the act in question is the publishing of certain political cartoons, that is either a legal act or an illegal act. Whether my intentions were to offend or to educate or to entertain should be irrelevant.

The outrage is partially because the man is such a blowhard. But even without that, what business does the government have asking about our intentions and thoughts? It's none of their business.

I may be less than articulate tonight due to elevated alcohol content.

Amy -- I was not very clear, I think. It happens that Ezra Levant is currently prosecuting a libel case, as described here. Though it's coincidental, it does throw libel and hate speech laws into rather sharp relief, I think. I hope I didn't seem to be attacking what you said -- it's just that I don't want to paper over issues that do exist in the Canadian laws. The issue is really where we strike the balance between competing rights, as you point out (and the copyright point is extremely useful in this). I'm thinking that hate speech laws strike roughly the same balance as libel laws between the two parties' interests.

what business does the government have asking about our intentions and thoughts? It's none of their business.

On this note -- and my authority on this comes mainly from rooming for a couple of weeks with a law student who was specializing in constitutional law at the time -- Canadian jurisprudence clearly states that intention of the prosecuted is not something that the court can take into account, because it is inherently unknowable. In fact, IIRC this came up in a heated discussion about hate crime laws, which would have been much newer at the time of that discussion.

In the Levant case, he was not compelled to appear in court (though it is prudent, even if expensive, for him to do so). And because it is not a civil suit, I'm assuming (but not certain) that a public defender would be available to him.

I have to take issue with this. Partisan was making the same claims with regard to the willy-nilly aspect of compulsion. I read the act, and while that seems to be technically (if not practically) true (even civil courts can't compel you to show up), there are means to compel a defendant (or anyone related to he case, in fact) to give account, if not actually show up. There are provisions for search and seizure. To point out that they're not being exercised in this case skirts the issue; these are things that could just as easily have happened to Levant if someone had simply chosen to make them happen. Yeah, simply reprinting some cartoons opens the door to this under Alberta's Human Rights, Citizenship, and Multiculturalism Act (what a laughably Orwellian title). I draw your attention to sections 22-24 inclusive.

Perhaps most chilling of all is Section 30(2), which states that "the panel is not bound by the rules of law respecting evidence in judicial proceedings". Could anything possibly be more hypocritical in a human rights act than to exempt the hearing itself from the rule of law??

The issue is really where we strike the balance between competing rights, as you point out

Exactly---I just think you and I might draw that line in slightly different places, and it seems the US and Canada may draw the line in slightly different places. It's not like we are talking about extremes on either side. (And by the way, I knew you were not attacking me or what I said. I saw it as just too reasonable people trying to communicate!)

Canadian jurisprudence clearly states that intention of the prosecuted is not something that the court can take into account, because it is inherently unknowable.

Is this a statement of Canadian law in general or just with respect to hate crimes? I find it hard to believe that Canadian law never takes intent into account. For example, don't they differentiate between murder---an intentional killing---and vehicular homicide which is accidental? Or between assault and an accident? Intent is hard to prove, but it plays a huge role in many aspects of US law---on both the civil side and the criminal side and in almost every area of law: discrimination, crimes, torts, unfair trade, etc.

Canadian jurisprudence clearly states that intention of the prosecuted is not something that the court can take into account, because it is inherently unknowable.

There are three things that must be traditionally demonstrated to a jury in any Common Law system to justify asking them to convict: means, motive, and opportunity. The question of intention comes up in the courts all the time; motive is typically induced from it. The question of intention is crucial, for instance, to proving a case of murder as opposed to manslaughter or negligence causing death.

"In Canada there are about 2.6 attempted murders per 100,000 population in 2006. Attempted murder carries the same consequences as murder itself; it is the intent, not the result, that determines the sentence."

I visit wmtc every couple of days and read through, almost always finding it stimulating and thought-provoking. (I read, therefore I vote) :) I rarely comment because I'm usually "late joining in" and the conversation seems to be over. I had to throw in a comment here, though, even it means getting out to work late.I was extremely frustrated by all the attention given to the cartoons in Western Standard. When someone prints, publishes, or displays something that mocks christianity, someone will get WAY bent out of shape about it and try to get their government to ban it or sometimes even prosecute those involved. This is a clear case of asking government to take a religious stand and must be fought with all resources available. I can't see any difference here. I defend any religion's right to be practiced anywhere. But no religion has the right to require non-members to participate in their religion. And no religion has the right to limit opposing viewpoints, whether or not they are tasteless. I think Mike Huckabee is a prick, myself. I get a kick out of cartoons that make fun of him. If someone in Alabama decides that Huck is the Holy Leader that God has chosen to lead us back to the flock, will that mean we can no longer print disparaging cartoons about him?It's bullshit, no matter what you think of the religion in question.Oh, and BTW - Huck is now pulling out the Confederate army battle flag card - referring to it as "your flag" when talking to a group in SC. It's not their state flag, Huck! Get over it, already.

Re intent, I know that intent figures into many important laws, and to sentencing. If I killed someone by accident, hopefully I would be punished less severely than if I plotted to murder someone. I understand that.

But that doesn't mean intent should be weighed in to every law - indeed, especially not if one believes, as I do, that these laws shouldn't even exist!

I truly don't see intent as applicable when it comes to speech or expression. Drawing a comparison between the right to publish a political cartoon and laws governing taking a human life doesn't hold up for me.

Perhaps most chilling of all is Section 30(2), which states that "the panel is not bound by the rules of law respecting evidence in judicial proceedings". Could anything possibly be more hypocritical in a human rights act than to exempt the hearing itself from the rule of law??

I truly don't see intent as applicable when it comes to speech or expression.

I agree with this statement, and in the video posted, I agreed with the outrage over asking him about his intent in determining whether what he said was a violation of law. Since I do not agree with curbing speech, especially political speech, I also agree that intent should be irrelevant.

My response/question about intent was in response to M@'s statement that Canadian law never takes intent into account. I found that hard to believe, and LP's answers seem to support my assumptions that that could not be the case. Certainly in some contexts intent should be important. But I agree---not with respect to the speech issues we are discussing.

LP, thanks for the link to the Canadian Human Rights Law. It certainly helps me to appreciate what is at the heart of this discussion. Although I only looked at it briefly (I actually have to do some work...), my eyes did pop over some of the procedural and substantive provisions, including the one you mentioned. I also found it incongruous that right after the provision prohibiting the publication of statements considered discriminatory, there is a provision that says nothing in the law should violate the freedom of expression.

That seems like something straight out of Brave New World or 1984 to me.

My response/question about intent was in response to M@'s statement that Canadian law never takes intent into account. I found that hard to believe, and LP's answers seem to support my assumptions that that could not be the case. Certainly in some contexts intent should be important. But I agree---not with respect to the speech issues we are discussing.

Right, I understood that (and I should have made that clear).

People who argue in favour of anti-hate-speech laws usually point out that the law does look at intent, and manslaughter vs murder is the argument one often hears.

What's the rhetorical device where one extrapolates so broadly that the same principle cannot be said to apply? Comparing speech to taking a human life strikes me as a non-argument.

You're welcome, but to be fair, that's just Alberta's act. I really don't know how common its particulars are in other provinces or federally, but if it's all all indicative, then we have cause for concern.

Perhaps most chilling of all is Section 30(2), which states that "the panel is not bound by the rules of law respecting evidence in judicial proceedings".

Just wondering: couldn't this simply mean that there are different rules for what constitutes evidence depending on the type of hearing or proceeding -- not that the rules of law are totally ignored? Similar to proceedings where a person's guilt must be proven "beyond a reasonable doubt" versus "a preponderance of the evidence".

couldn't this simply mean that there are different rules for what constitutes evidence depending on the type of hearing or proceeding -- not that the rules of law are totally ignored?

I think that is exactly what it means. For example, different rules for what is admissible as evidence apply to arbitration hearings than apply to hearing in a court. It also may mean a different standard of proof, as in Allan's example of civil v criminal trials. But overall the rule of law, the substance of the law, still controls.

If I've broken the law, then I've broken the law, and I should be punished. If I haven't broken the law, then I shouldn't be punished. If the act in question is the publishing of certain political cartoons, that is either a legal act or an illegal act. Whether my intentions were to offend or to educate or to entertain should be irrelevant.

I don't know what the law actually is, but I'd certainly prefer it to take intent into account. Yes, I was driving without a licence, but I had to get someone to the hospital and I was the only person around who had ever learned to drive. Yes, I killed a man, but he had broken into my apartment and how was I to know that I was strong enough to deliver a lethal blow with a blunt object? Or, on a more mundane level, yes, I googled up porn at work, but I was searching for this exact phrase that appears in my text and had no idea that those words might be porn keywords.

I just can't imagine anyone thinking that is less fair than just looking at the outcome.

I understand what you're saying, ImpStrump. If you scroll through comments, you'll see I said similar things about murder vs manslaughter.

The difference, to me, is that both those outcomes (using murder vs manslaughter as an example) are crimes. One is a more serious crime and the difference between the two boils down to intent.

Looking at porn at work may not be a crime, but it can cost you your job - unless there was some mitigating circumstances. So again intent is very important.

But publishing a cartoon (IMO) could never, should never be a crime. So intent is irrelevant. Intent is my own business, no one else's. Questions about intent are an unwarranted invasion of the government into my thoughts.

It's not that I think taking intent into account is less fair. It's that, to me, the whole process is dangerous and wrong - the law that triggers the investigation, the investigation itself, and everything that arises from it.

I'm sorry I can't engage in discussion a little more but this is a really bad week for me. Next week too. But I seemed to open a can of worms and I feel a little compelled to clarify what I said a little.

What I said did come from a discussion I had some time ago, but seemed relevant to the subject at hand. I'm not a law-talking guy, so I don't know if I've mangled an otherwise true statement, or gotten it completely wrong. Next time I do see my law-talking guy friend, though, I will be asking him about this. Otherwise, though, I'm not even sure how I would go about looking this kind of thing up. I'll give it a go at some later date perhaps.

However:

- Intent is not the same thing as motive. I also am not sure whether motive is treated in Canadian law the same way it is treated in American law.

- First- and second-degree murder are differentiated, as far as I understand, by premeditation. Presumably it makes a murder more severe if it was planned than if it was a crime of passion. I'm not sure I agree but I do understand the distinction. In any case, actions that show premeditation are considered, I think -- you can't just say "he was thinking about it for a while". Preparing the murder weapon, stalking the victim, etc are the kind of thing that gets brought up.

- I have no idea what the differentiating factors for manslaughter are. I agree that intent does seem to play a part here, but I suspect that actions have more bearing than the killer's internal thoughts do.

- There is a world of difference between what someone is guilty of, and what his or her sentence might be. Loads of mitigating factors are brought into a sentencing hearing (e.g. victim impact statements) that have no bearing at all on guilt.

- If intent is permissable as a means of assessing guilt, wouldn't "but I didn't mean to" be an adequate defence for any crime? How can we refute that statement from a defendant?

- Finally, it makes sense to me when I look at it like this: all we can assess are a person's actions. If we assess what we (speaking perhaps as the state, with all that implies) think are a defendant's intentions, we are actually prosecuting for thoughtcrime.

Okay, I'm really sorry to take the shotgun approach here, and I wish I could be more involved in the discussion. I'll leave you with the first quote that popped into my mind as I was reading this comment thread: "Honestly, attempted murder. What kind of crime is that? Do they give out a Nobel Prize for attempted chemistry?"

M@, I have no background in Canadian law so what I describe is based on my knowledge of US law. Also, what I am describing is very general and oversimplified. Defining "intent" is a fairly complicated question in law---do we mean intend the actions or the result of those actions? It depends on the circumstances.

Intent is not just a factor in sentencing in criminal law---it is an element of the crime. To commit murder you have to have the required intent. If someone dies as a result of your conduct, but you were only reckless or negligent and did not have that intent, it is not murder. (There are some exceptions to this, for example, so-called felony murder, but in general murder requires intent.)

Similarly in tort law, there are some torts where you must prove the intent of the person you are suing---for example, battery---did you intend to touch the person, as opposed to knocking them over, say, by accident. No intent, no battery. Other torts do not require proof of intent, for example, driving in a negligent fashion can lead to liability, even if you did not intend to cause an accident or hurt someone.

- If intent is permissable as a means of assessing guilt, wouldn't "but I didn't mean to" be an adequate defence for any crime? How can we refute that statement from a defendant?

Juries and courts have to determine credibility and intent all the time in all different contexts. The defendant's assertion does not conclude the matter if other evidence proves otherwise and the defendant lacks credibility.

Perhaps someone who is a criminal lawyer could do more justice to this issue. It really is not my area of expertise, so I think I may have exhausted my ability to address this question.

It's not that I think taking intent into account is less fair. It's that, to me, the whole process is dangerous and wrong - the law that triggers the investigation, the investigation itself, and everything that arises from it.

I agree, as I think I may have said somewhere above. Intent may be relevant in the context of other matters, but since I think the whole notion of punishing someone for expressing an opinion is wrong, the question of intent is besides the point.

I have no idea what the differentiating factors for manslaughter are. I agree that intent does seem to play a part here, but I suspect that actions have more bearing than the killer's internal thoughts do.

I'd imagine this would really depend on the circumstances. The Criminal Code allows you to use "no more force than is necessary" to defend yourself. Which is problematic for those of us who don't get into a lot of fights and therefore don't know what kind of force is necessary. Based on the fact that everyone in the world including grandmothers and small children has beaten me at arm wrestling, I'd assume that I could use every ounce of strength I can muster and I'd only be able to temporarily delay an attacker - if I'm lucky. So if I end up accidentally killing him by hitting him over the head with a blunt object, I'd certainly hope the courts would take into account that I honestly have no idea how much force was actually necessary and that all empirical evidence suggested I'm especially weak, rather than just objectively assessing whether hitting a person on the head with a blunt object is reasonable to people who actually know how much force it takes to kill a person.

If intent is permissable as a means of assessing guilt, wouldn't "but I didn't mean to" be an adequate defence for any crime? How can we refute that statement from a defendant?

Maybe not an entire defence, but it should certainly be a factor. Otherwise, we'd all get charged with theft when we accidentally walk out of the library carrying a book we haven't checked out.

If we assess what we (speaking perhaps as the state, with all that implies) think are a defendant's intentions, we are actually prosecuting for thoughtcrime.

Which is exactly why it makes perfect sense to me to ask the defendant what their intentions were instead of just assuming, and which is why if I were ever a defendant I would very much want to explain what I was thinking.

If intent is permissable as a means of assessing guilt, wouldn't "but I didn't mean to" be an adequate defence for any crime? How can we refute that statement from a defendant?

This actually does come up in murder cases quite a bit, in a number of ways. A guy gets killed in the bed of another man's wife... the common defense is always "crime of passion", which is usually the case in matters like that. The intent to kill is presumed to be not properly formed, and so the offense resulting is lesser. But was the adulterer hit over the head with the table lamp, or did the husband take the time to go down to his car and get the handgun out of the glove compartment? I know the weight the courts put on this because something very like this happened my my cousin's husband walked in on her and a "friend" many years ago. Or the "hunting accident" with the entry angle demonstrating a shot from shoulder height (thus aimed), not from the waist. Evidence often indicates intent, and intent is critical to the nature of the crime itself. I do remember that one of the keys to culpability is being able to demonstrate the accused intended to commit the crime; without intention, the crime may be a lesser one, or there may not actually even be a crime at all because the accused may have acted "in good faith" (though that more often comes up in matters of fraud than murder). There's also the defense of necessity, such as breaking and entering an abandoned cabin during a snow storm so you don't freeze to death: intention is key there, too. A B&E has taken place, but the intention was neither vandalism nor theft; it was the preservation of life. Same action, different intention, and so different results.

"But I didn't mean to" is a very important defence. In one way or another, it figures into a huge number of cases. I have trouble believing the Canadian legal system is so different than the US's in this regard. (Don't both descend from English law?)

If I ever have the misfortune, say, of accidentally hitting someone with my car, I hope "I didn't mean to" figures into my prosecution and sentencing!

If we assess what we (speaking perhaps as the state, with all that implies) think are a defendant's intentions, we are actually prosecuting for thoughtcrime.

Which is exactly why it makes perfect sense to me to ask the defendant what their intentions were instead of just assuming, and which is why if I were ever a defendant I would very much want to explain what I was thinking.

Right. And at the risk of being ridiculously repetitious, if you don't think there should be a defendant in the first place, because there should be no case, intent has no place here.

If speech is as unrestricted as possible, then intent of speech would never be at issue.

No assumption will be made, because no question will be asked, because there is no defendant, because no law has been broken.

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